A panel of the United States Court of Appeals for the Fourth Circuit
has affirmed the Eastern District of Virginia's ruling that Gov. Rick Perry and former Speaker Newt Gingrich protested Virginia's laws regarding out-of-state circulators too late in the game to challenge the law.
Gov. Perry's attorneys filed an emergency motion Sunday morning seeking an order to have his name placed on absentee ballots, or at a minimum to have them not printed quite yet. Motion, denied.
As with the trial court, the decision is based on the doctrine of laches, an affirmative defense to suits for injunctive relief (i.e., suits seeking to force someone to do something or not do something). It's the "use it or lose it defense"—when the plaintiff hasn't been suitably diligent in seeking relief, and where this delay prejudices the defendant, she loses.
The Court's opinion notes that Perry had no reason to wait this long:
Movant [Perry] had every opportunity to challenge the various Virginia ballot requirements at a time when the challenge would not have created the disruption that this last-minute lawsuit has. Movant’s request contravenes repeated Supreme Court admonitions that federal judicial bodies not upend the orderly progression of state electoral processes at the eleventh hour. Movant knew long before now the requirements of Virginia’s election laws. There was no failure of notice. The requirements have been on the books for years. If we were to grant the requested relief, we would encourage candidates for President who knew the requirements and failed to satisfy them to seek at a tardy and belated hour to change the rules of the game. This would not be fair to the states or to other candidates who did comply with the prescribed processes in a timely manner and it would throw the presidential nominating process into added turmoil.
Instead, the Court notes, Perry could have sued to challenge the law as soon as he declared his candidacy in August, as at that point he was immediately "injured" by his inability to use non-Virginia circulators to gather petition signatures.
Movant had every incentive to challenge the requirement at that time. Success in an early constitutional challenge would have allowed Movant to maximize the number of his petition circulators and minimize the amount of time it took to acquire the requisite 10,000 signatures. Nevertheless, he chose to sit on his right to challenge this provision until after he had been denied a place on the ballot. This deliberate delay precludes the possibility of equitable relief. For “equity ministers to the vigilant, not to those who sleep upon their rights." [...]
If we were to find Movant’s delay excusable, we would encourage candidates to wait until the last minute to bring constitutional challenges to state election laws. Once a candidate learned he had been denied a place on the ballot, he would take his disappointment to the courthouse and hapless state election boards would be forced to halt their scheduled election processes to wait for a ruling. Challenges that came immediately before or immediately after the preparation and printing of ballots would be particularly disruptive and costly for state governments.
And, after all, the relief Perry sought was wholly hypothetical and conjectural (a point I've made repeatedly here):
While Movant of course predicts that he would have met the 10,000 signature threshold if only he had been allowed to use non-Virginia residents to gather signatures, such counterfactual speculation is not the office of the federal judiciary. We have no inkling as to whether Movant would have actually been able to secure 10,000 signatures, even if non-Virginia residents were able to circulate his petitions.
Accordingly, the 4th Circuit did not bother ruling on the merits of Perry's claim—that Virginia's ban on out-of-state circulators is an unconstitutional abridgment of the circulators' First Amendment rights. That will wait for another day, and another case.
Should this matter be appealed to the Supreme Court of the United States for an emergency injunction, the Chief Justice has jurisdiction over this Circuit. Per his in-chambers opinion in Lux v Rodrigues (Sept. 30, 2010), also regarding Virginia's ballot access rules, I would not expect him to afford Perry and Gingrich any assistance here.